Taylor v. State of Idaho

109 P.2d 879, 62 Idaho 212, 1941 Ida. LEXIS 5

• Court: Idaho Supreme Court
• Decided: January 21, 1941
• Docket: No. 6818.
• Status: Published

Opinions

BUDGE, C. J.

This action was filed in the Supreme Court on June 8, 1940, under and by virtue of section 10, article 5 of the Constitution of the State of Idaho, invoking the original jurisdiction of this court to hear claims against the State of Idaho and for a recommendatory judgment after action of the State Board of Examiners disallowing the claim of plaintiff.

The issues involved and the facts established by the amended complaint and amended answer are in effect as follows :

The plaintiff Fred M. Taylor, on May 15, 1939, was appointed as attorney to the Idaho State Liquor Board and Dispensary by said board under and by virtue of section 308 of chapter 222 of the 1939 Session Laws with the rate of pay of $83.33 a month and received on November 1, 1939, a new certificate of appointment by the State Liquor Dispensary increasing his salary to $100 a month. As such attorney his salary was allowed by the State Board of Examiners in full up to and including April 17, 1940, at about .which time J. W. Taylor, Attorney General for the State of Idaho, informed the plaintiff by letter that his services as attorney for the State were no longer required. Subsequent to such notification, on April 26, 1940, plaintiff presented a claim to the State Liquor Dispensary for his salary for the month of April, 1940. This claim was approved by the State Liquor Dispensary and its manager and was presented to the State Board of Examiners for approval and allowance by said board. Upon advice of the Attorney General the Board of Examiners allowed said claim in part, that is for the sum of $56.67, covering the period from April 1, 1940, to April 17, 1940, and disapproved the balance. The State of Idaho, being represented by the Attorney General, has admitted the factual statements contained in the amended complaint but denies the legal authority of the Idaho Liquor Board to employ legal counsel, asserting that this right rests solely with the Attorney General of the State of Idaho, and that said Attorney General had not appointed said plaintiff, and that that portion of the law under which his appointment was made is unconstitutional and void and the State is not legally chargeable with his salary.

'With the consent of plaintiff Vestal P. Coffin petitioned the court and was granted permission to appear herein as amicus curiae and permitted to sign in such capacity the brief to be filed by plaintiff.

Paragraph VI of defendant's amended answer alleges in part as follows:

‘ ‘ That the State Board of Examiners of the State of Idaho did not err in law in disapproving the said claim of Plaintiff; that Sec. 308, ch. 222 of the 1939 Session Laws of the State of Idaho, insofar as it purports to create the position of legal counsel or attorney of and for said State Liquor Board and said Dispensary and to empower said Board to select or appoint such legal counsel or attorney, to prescribe the qualifications of any person so selected or appointed, to fix compensation, assign the duties, and to discharge such or any such person so selected or appointed, is in violation of and contrary to the provisions of the Constitution of the State of Idaho; that the exercise by said Board of any or all of the purported powers attempted by said statute to be created and vested in said Board was and is an infringement on and an invasion of the duties, rights and powers imposed upon and vested in the Attorney General of the State of Idaho by the provisions of said Constitution, their intendment and effect, particularly Sec. 1, Art. 4; Sec. 3, Art. 4; and Sec. 1, Art. 2 of the Constitution of Idaho.....”

Section 308, chapter 222, Laws of 1939, page 465, provides:

“Without attempting or intending to limit the general powers of the board contained in section 307 hereof, such powers shall extend to and include the following: . . . .

“(b) To prescribe the qualifications of and to select clerks, accountants, agents, vendors, inspectors, servants, legal counsel, and other personnel to conduct its business and perform its functions; to require from those holding positions of trust, bonds with approved sureties; to fix the compensation of all appointees and employees, assign their duties, and to discharge them.”

The only issue in the case is whether that portion of chapter 222, 1939 Session Laws, empowering the State Liquor Board to employ legal counsel to conduct its business and perform its functions, fix his compensation, assign his duties and to discharge him violates the Constitution in that it deprives the Attorney General of such powers.

It may be said that the statute referred to and urged to be unconstitutional in the particulars above suggested found its inception in the amendment of section 26, article III, of the Constitution of the State of Idaho, ratified November 6, 1934, and reading as follows:

“Section 26. POWER AND AUTHORITY OYER INTOXICATING LIQUORS. — Prom and after the thirty first day of December in the year 1934, the Legislature of the State of Idaho shall have full power and authority to permit, control and regulate or prohibit the manufacture, sale, keeping for sale, and transportation for sale of intoxicating liquors for beverage purposes.”

It is well settled that unless the legislature, a distinct and independent, but coordinate branch of the state government, is prohibited by the Constitution it has plenary power. (State v. Johnson, 50 Ida. 363, 296 Pac. 588; State v. Nelson, 36 Ida. 713, 213 Pac. 358; State v. Banks, 33 Ida. 765, 198 Pac. 472.) Prom the foregoing may be derived the further proposition that unless the legislative power to appoint legal counsel as provided in section 308 of chapter 222, 1939 Session Law, supra, was limited by the Constitution, that is as urged by defendant, — granted to the Attorney General of the State of Idaho, the legislature had such power. It'does not appear necessary to determine, and we do not therefore determine, whether the Attorney General had been granted such power by the Constitution prior to the amendment of section 26, article III. The question is rather, whether the constitutional amendment, section 26, article III, providing that “the Legislature of the State of Idaho shall have full power and authority to permit, control and regulate, or prohibit the manufacture, sale, keeping for sale, and transportation for sale, of intoxicating liquor for beverage purposes” had the effect of giving to the legislature any power to appoint legal counsel which may have been theretofore limited by the Constitution, or in other words, granted to the Attorney General.

The presumption is that words used in a Constitution are to be given the natural and popular meaning in which they are usually understood by the people who adopted them. (Powell v. Spackman, 7 Ida. 692, 65 Pac. 503, 54 L. R. A. 378; Reed v. Gallet, 50 Ida. 638, 299 Pac. 337; Prior v. Noland, 68 Colo. 263, 188 Pac. 729; Cashman v. Vickers, 69 Mont. 516, 223 Pac. 897; State v. Moody, 71 Mont. 473, 230 Pac. 575; Ex parte Ming, 42 Nev. 472, 181 Pac. 319, 6 A. L. R. 1216; People v. Eddy, 43 Cal. 331, 13 Am. Rep. 143; City of Pasadena v. Railroad Com. of Cal., 183 Cal. 526, 192 Pac. 25, 10 A. L. R. 1425; Shay v. Roth, 64 Cal. App. 314, 221 Pac. 967; State v. Harris, 74 Or. 573, 144 Pac. 109, Ann. Cas. 1916A, 1156; Jones v. Hoss, 132 Or. 175, 285 Pac. 205; State v. Lister, 91 Wash. 9, 156 Pac. 858; State v. Clausen, 142 Wash. 450, 253 Pac. 805.)

The phrase particularly in question is that the legislature shall have “full power and authority to ... . control and regulate .... ” Funk & Wagnalls New Standard Dictionary of the English Language defines “full” as follows: “without abatement, diminution, reserve, or qualification.”

“Full, means the highest state, point, or degree; complete measure; fullest or utmost extent”; (McCrary v. McCrary, (Tex. [Civ. App.]) 230 S. W. 187).

“Full, implying that nothing is reserved.” (State v. Marshall, [100] Miss. [626], 56 So. 792, 796 [Ann. Cas. 1914A, 434].)

“The phrase ‘full control’ when unqualified, of necessity implies complete domination,” (Welsh v. Gist, [101] Md. [606], 61 A. 665, 666).

In Boyles v. County Court of Barbour County, 116 W. Va. 689, 182 S. E. 868, the court considering “An act .... providing for state control of alcoholic liquors” said:

“The word ‘control’ is very comprehensive, meaning to regulate, restrain, dominate, or subdue.”

The word “control” as used in a constitutional provision is considered in Noey v. City of Saginaw, 271 Mich. 595, 261 N. W. 88, the court saying:

“An amendment to our state Constitution (Article 16, sec. 11) was adopted in 1932, which reads in part as follows: ‘The legislature may establish a liquor control commission, who, subject to statutory limitations, shall exercise complete control of the alchoholic beverage traffic within this state, including the retail sales thereof; ”.....

‘ ‘ The word ‘ control, ’ as used in the Constitution, means to regulate and govern.

‘ ‘ ‘ Courts are not to tamper with the clear and unequivocal meaning of words used in the statute. There can be no departure from the plain meaning of a statute on grounds of its unwisdom or of public policy.’ (Handy v. Township of Meridian, 114 Mich. 454, 457, 72 N. W. 251, 253.)”

“The words ‘to control’ and ‘to regulate,’ ex vi termini, imply to restrain, to cheek, to rule and direct, And, in my judgment, the power to to do either of these implies the right to license, as a convenient and proper means to that end.” (In re Wan Yin, 22 Fed. 701.)

The words “full power and authority to control and regulate” appear to have the meaning of the right to govern, regulate, dominate, restrain or subdue, without restraint, qualification, reserve, abatement or diminution, and implies of necessity the power and authority to do all things necessary, convenient and proper to such complete domination. Pursuant to the constitutional amendment to which reference has been made, imbedding in the legislature “full power and authority to ... . control and regulate .... intoxicating liquors for beverage purposes” the legislature by chapter 222, 1939 Session Laws created the Idaho Liquor Board, giving it general powers and duties, and among other things providing such powers should extend to and include:

“To prescribe the qualifications of and to select . . . . legal counsel, and other personnel to conduct its business and perform its functions; .... to fix the compensation of all appointees and employees, assign their duties, and to discharge them.”

Since the legislature has been accorded “full power and authority to control and regulate .... intoxicating liquors for beverage purposes” under the Constitution as amended, neither of the two other independent and coordinate branches of the state government can deprive it of such “full power and authority .... to control and regulate” and it necessarily follows that the legislature exercising such “full power and authority to control and regulate ’ ’ may adopt such means and measures, and employ such assistants and help as in its judgment are necessary to carry out and effectuate such full power of control and regulation. To say that the Attorney General, a member of the executive department of the state government, has the power to designate legal counsel and to direct and control the duties of such legal counsel, and that to deprive him of this authority is an infringement on and an invasion of the duties, rights and powers imposed upon and vested in the Attorney General of the State of Idaho, is to say that the legislature to this extent, does not have “full power and authority to control and regulate, . . . . intoxicating liquors for beverage purposes.” Such does not appear to have been the intent of the people in the adoption of the amendment to the Constitution providing that the legislature shall have full power and authority to control and regulate intoxicating liquors for beverage purposes. The citizens of this state by constitutional amendment placed upon the legislature the exclusive responsibility and duty of exercising full power and authority to control and regulate intoxicating liquors for beverage purposes, — • wisely or unwisely. The legislature is directly responsible to the citizens of the state in carrying out the duties and powers placed upon it by the Constitution as amended. Neither the executive nor judicial department of the state government may encroach upon, interfere with, or curtail the power and authority vested in the legislative department by the Constitution as amended. It is a fundamental principle of constitutional law that under a Constitution such as ours, with its three departments of government, each one is fully independent in its own field. Under the constitutional amendment, supra, the legislature may exercise all the powers expressly conferred upon it and such incidental and implied powers and authority as may be necessary to enable it to exercise the power expressly granted, including the right to appoint legal counsel.

We recommend to the next regular session of the legislature payment of the claim of the plaintiff together with legal interest thereon from the date of presentation to the Board of of Examiners and their rejection thereof.

Givens, J., concurs.